Wednesday, December 30, 2009

Everyone seems to be writing some end of year, end of decade, Top 10, Best of, my predictions, list. So because the term "follower" is now no longer a criticism, but a part of the fabric of our lives, I'll play along.

This is my end of the year, decade, top, best, things I wanted to predict, comment on, and mention regarding the legal profession.

Seems as if the lawyers among us are eagerly awaiting "next year, "2010," which is better defined as "next week."

Love the optimism and hope, but let's be real. Next year is basically Monday. "Change" was last year's term.

So here we go:

[1]I said, to the "please don't say that" masses, that Big Law had collapsed. It did, and it's not coming back, ever.

The gig's up folks (cue the "you're just jealous" comments). The ponzi scheme that was BigLaw is over. Clients aren't paying for the marble floors, embossed coffee mugs, and research that was done for another client and is just sitting in a file. Clients have become smarter, BigLaw has been exposed as nothing more than a practice of giving a client four lawyers when one, and a paralegal will do.

Sure, big companies will still need lots of lawyers, but they're not paying for the BigLaw lifestyle. Most of BigLaw is buried in debt, and will remain so.

Solos and small firms need to continue to prepare for more business that used to only go to BigLaw.

Every State Bar that enacts rules regarding Facebook, twitter, and any other social media site, needs to be dragged into federal court and reminded about the Constitution. As much as State Bars want to protect the consumer from us big bad lawyers, they are embarrassing themselves by trying to control every word that comes out of every lawyer's mouth.

Enough.

Speaking of enough....

[3]All social media "experts" roaming the internet need to be fully vetted by those young or out of work, or desperate for business, lawyers

Social media experts are the new late night infomercial. People claiming to have the "secrets" to using the internet, preying on the unknowing and desperate lawyer that needs business. The private responses to my writing on this topic of "I had no idea," is stunning.

Martindale's response my question of "why," was to tell me that I didn't understand, and that the accolade was still free.

So now lawyers that go to lawyers.com are only told a lawyer is "AV" rated if they paid the money. My request to have Martindale state on lawyers.com that many lawyers are "AV" rated but only those who paid the money are listed as "AV," went unanswered.

Martindale is still living in a world where they were the only game in town. That's their loss, and will continue to plague their existence.

I remember being in law school and learning that the law review faculty were trying to get the school to put less effort into the trial team because law review was more important to the future of the students. Why teach students how to try a case when you can teach them to research and write? That is, of course, what BigLaw wants. The enemy of BigLaw is the student that wants to practice law.

Well BigLaw is dead, more students are "going solo" out of law school, or joining small firms that want real lawyers from day one.

Thursday, December 24, 2009

With a straight face, The Florida Bar determined at it's December 11th meeting of the Board of Governors, the following in regard to lawyer websites: (AVVO's General Counsel Josh King has his thoughts here).

[1] Lawyers’ use of online social networking sites is subject to the same rules as lawyer Web sites.

[2] Web site visitors (meaning "stupid potential clients that we need to protect from big bad lawyers) must view a disclaimer page that clearly indicates what information will be viewed, including: That page could include whether all results or client testimonials are provided, that the results or testimonials are not necessarily representative of results obtained by the lawyer or all clients’ experience with the lawyer, and that a prospective client’s individual facts and circumstances may differ from the matter(s) in which the results or testimonial are provided.

The disclaimer also has to say that, (this is great) the information behind the disclaimer is not regulated by Bar advertising rules. (As Elmer Fudd would say: be berwey berwey careful).

[3] On the disclaimer page, the viewer has to accept or acknowledge receipt of the information before being given access to pages that follow. (Merry Christmas to web-site designers).

Oh, and lookie here, according to the Florida Bar News Article: The committee acted at the request of Ft. Lauderdale lawyer Peter T. Boyd, who owns PaperStreet Web Design, a company that designs Web sites for other lawyers.

And here's more protection for those idiot potential clients who the Bar wants to protect: The information would be considered “upon request” only if the lawyer sets the Web site up to block (BLOCK!) the area containing past results and testimonials from viewers who have not submitted acknowledgement of viewing the disclaimer page, and the testimonials and/or past results would only be shown upon submission of the agreement after viewing the disclaimer page.

Seriously folks, when will we realize that Bar advertising rules are nothing more than calling potential clients "stupid?"

Now that we're done making sure potential clients are protected from themselves when viewing lawyer websites, lets move to social networking.

No statements that characterize the quality of legal services being offered; provide information regarding past results; or include testimonials. No, no, no.

Lawyers are not responsible for other party’s postings,(yet), unless the lawyer prompts the posting or uses the other party to circumvent the lawyer advertising rules.

And this is the absolute best:

Invitations to a third party to view or link to the lawyer’s social networking page on an unsolicited basis are considered in-person solicitation and violate Rule 4-7.4(a), unless the third party is the lawyer’s current client, former client, relative, or another lawyer.

Oh, and YouTube postings must comply with Rule 4-7.2, except the requirement they be submitted to the Bar for review.

The Bar did note in asking for a six-month moratorium on enforcement, that "the practical effect is most lawyer Web sites are out of compliance with the new rules.

All of this is utterly ridiculous, and displays a complete lack of understanding of social media. I have no problem with keeping lawyers honest - whether it's in person, or on-line, but the Bar has rules to cover this already:

Thursday, December 17, 2009

There's been a bit of a sweeping cleanup of the cess pool that is twitter these days. Those parading as lawyers or "former lawyers" have been called out on their qualifications, and lack thereof. They have quietly removed the lies about their background, while taking advice from "internet defamation lawyers" to "not engage." That's good advice to those who have nothing of any relevance to say.

And yesterday an interesting question was asked from an anonymous commenter on Brian Cuban's Blog:Do lawyers really need that much protection?

And desperate lawyers would rather follow people lying about their qualifications as social media experts than real lawyers who may have a tip or two about becoming not a better tweeter, but a better lawyer.

Here's the proof:

Listed below are some of the people who are perceived to be "social media" and "tech" types on twitter that are or were lawyers, or market to lawyers, and their followers:

Now here's a sampling of a few lawyers who actually have clients, may go to court, generally spend their days "practicing law," and their followers on twitter: (This is not an "all-inclusive list of all the great "real" lawyers on twitter, so please stop emailing me).

And yes, there are the exceptions - some "real" lawyers have thousands of followers. But the difference in general between those who market to lawyers, and those who are lawyers is remarkable.

So this begs the question to the lawyers on twitter - don't any of you aspire to be like any of these lawyers? Practice in areas in which these lawyers practice? Learn something that may make you a better lawyer?

Saturday, December 12, 2009

The opinion: Judges may not add lawyers who may appear before the judge as "friends" on a social networking site, and permit such lawyers to add the judge as their "friend."

Sigh.

The committee started with this premise: According to Facebook, "your friends on Facebook are the same friends, acquaintances and family members that you communicate with in the real world."

All together now, everyone who's on Facebook - that's a load of crap.

My friends on Facebook are mostly my "Facebook friends." Other than my high school friends and others I know personally, most I've never met. They are fellow lawyers and other interesting, or not, folks.

Every so often those of us on Facebook are standing in line at Starbucks, or attending some cocktail party and someone will say "hey, we're Facebook friends."

But when it comes to judges, in Florida, the committee has determined that "friend" is real, and real unethical: "....to identify lawyers who may appear in front of the judge as “friends” on the judge's page and to permit those lawyers to identify the judge as a “friend” on their pages.....would violate Canon 2B."

Canon 2B states: "A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."

The committee recognized that "....judges cannot isolate themselves entirely from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities....," but "....believes that listing lawyers who may appear before the judge as “friends” on a judge's social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge."

The committee's ruling is sound, but useless. The word "friend" is at the core of the ruling. I wonder, if the term used on Facebook was "person I know," would the committee have an issue?

Wouldn't you as a lawyer want to know that the lawyer is "friends" with the judge? Wouldn't you rather see the connection on Facebook and be able to ask the relevant questions? "Are you real friends, or just Facebook friends?"

Perhaps it's better we don't see the "friendship" on-line. Let's keep it on the golf courses, restaurants, vacation spots and poker games.

Thursday, December 10, 2009

Trial and Jury Consultant Dennis Elias posted this gem yesterday about how far we lawyers have fallen in the category of ethics & honesty - in just one year.

The article is a fascinating, but not surprising summary of what people think of various professions.

Making the highest gain - police.

Making the largest drops - lawyers, and worse, clergy.

We're better than priests?

Not really, they just dropped more than us this year.

Maybe the clergy have lost our respect due to the various sex scandals, or maybe people think God is not doing enough to help the economy. I don't know.

But let's talk about lawyers.

Lawyers dropped from 18% to 13%. So I guess 87% of the public don't hold lawyers in high esteem.

Here's my suggestion of how we change this:

Do nothing.

Lawyers started losing the respect of the public when advertising became rampant. Lawyers then became no different than retail shops and car dealerships. We've taken the advertising baton and sprinted with it. We are everywhere, and ready to "fight for you," for a "reasonable fee."

Our Bar associations have beaten their heads against the wall - instituting pro bono initiatives and pumping our profession at every opportunity.

It's a waste of time.

Ethics and honesty is individual. We can't turn this entire profession around, and we know it. We've lost any opportunity to return to a time when lawyers were the pillars of society. An individual lawyer may conduct him or herself in a way that garners a high level of respect, but one bad apple, or 87%, spoils the whole bunch in terms of public perception.

People hate lawyers, but may love their lawyer.

In reality, most lawyers are ethical and honest, regardless of the public thinking that's impossible for someone who "makes a lot of money.". But the public has lawyers in their faces every minute of every day, advertising, litigating, stealing, threatening, filing lawsuits they deem frivolous, and yes, occasionally doing something good. It's not juicy to though to report that a lawyer did something good. Pro bono work is the talk of Bar association award luncheons, and maybe a blurb in the Bar newsletter. When doctors go to foreign countries and treat people for free, that's news. When a lawyer represents someone for free, most think it's a requirement for being a "big bad" lawyer.

Bad things make news. When lawyers do bad things, that's what interests people.

We dropped 5% in one year. Why?

It doesn't matter.

My advice, don't lie, cheat, steal, try to give some of your time when you can, and do a good job for your clients.

It's no longer about the profession, it's about you, as a professional.

Thursday, December 3, 2009

I've written previously here and here about a social media guru/lawyer who seemed to have some "inaccurate" statements on several biographies on the internet.

When I made a comment directly to him, I'm sorry, to Adrian Dayton, about his seemingly non-existent law practice he "assured me" he is still a practicing lawyer and said I was "treading close to libel."

That's when I took 10 minutes and looked at his background.

The problem, for him, is that he's now removed or changed most, not all, of the "inaccurate" statements about himself on the internet.

So I guess I wasn't making any "false and defamatory statements concerning another?"

No, actually, since his biography on JD Supra no longer says that he has been referred to as an expert by various publications, and he removed that he was involved in more than one $450 million dollar merger, (there's a typo in there Adrian, should say "Adrian is an experienced corporate attorney who was part of A team that...," may want to fix that), and also changed on LinkedIn that his current company actually started months after he initially stated, and changed his status on the New York Bar Website to reflect that he's no longer at the firm where he became an "experienced corporate attorney" in 8 months...

Oh, wait, he didn't do that yet. The New York Bar Website still says that he works at his prior firm. Which begs the question - if Adrian is still a practicing attorney, where is he practicing, what is he practicing, where is his office, what is his office phone, and why does the New York Bar still think he is at his old firm?

Nevermind. I'll stop here.

Some may wonder why I care? Why do I care that someone is clearly not being totally truthful about his background?

Because he's a member of the Bar, and he wants other lawyers to pay him to teach them how to build their practice. But all these lawyers seemingly don't care, don't take the time to investigate, don't want to know as long as they can learn to use twitter to make money.

Just one more question (that will go unanswered) - why is the truth just coming out now?

Websites will be subject to the general advertising regulations set forth in Rule 4-7.2. Websites will remain exempt from the filing requirement under Rule 4-7.8. The jurisdictional disclosure requirement will no longer be required on the homepage, but will be required to appear on the website. Requirements for direct e-mail will be reinstated: a statement of qualifications will be required and a disclosure if a lawyer other than the one whose name appears in the advertisement will handle the matter will be required. Direct e-mail also will be required to begin the subject line with the statement "legal advertisement." The changes will be effective January 1, 2010.

Here's the secret to keeping you out of trouble:

While you don't have to file the website as an advertisement for review, go ahead and do it anyway. Pay the $150. The Bar will give you a nice opinion on what's wrong with the site.

Monday, November 30, 2009

I thought the questions below were pretty simple. Why does a lawyer, "social media expert," have all these apparent inconsistencies in his several biographies? Why does the New York Bar think he works somewhere he does not?

But the answers won't come. The social media "expert" strategy is to close your eyes and wait for it to subside. I've been here before with others who create online personas that are just a bit off of reality.

I did find Adrian Dayton's philosophy about trust when it comes to your online presence, which answers much of the questions.

"Being honest when nobody is watching is certainly not fashionable, but it is essential to learning to trust ourselves and eventually gaining the trust of others."

"I spend a substantial amount of time blogging and using other social media tools and I see trust taken for granted on a daily basis."

"We need to re-think how we start and build relationships, even when those relationships are formed online."

"Don’t Be Afraid to Tell People Who You Are"

"Web 2.0 is all about transparency. They say, here we are- warts and all- engage us or ignore us, but they lay all their cards on the table. The opposite of this is Facebook or Twitter users that have so little information about them on their bios, that it is impossible to tell who they are. There is no link to a blog, no history, not even a geographic location. How are you ever going to trust someone like that?"

Thursday, November 26, 2009

The culture of the social media "guru" "expert" "bullshit peddler" on twitter is a cess pool. There is no code of ethics (other than the rules of professional conduct that these non-practicing "shhh, don't tell anyone" lawyers have long forgotten).

And it's time for it all to stop.

Social media folks who market to lawyers on twitter are looking for one type of lawyer - one who doesn't "know how" to use blogs, twitter, Facebook, or the dozens of other social networking sites, and who wants to learn for the purpose of "getting more clients."

This is a time of desperation for many lawyers, who are willing to pay and listen to anyone that appears to know what they are talking about in the arena of making money. Anyone with a twitter account and a keyboard can project success, regardless of truth.

In order to make the naive lawyers think the social media guru has credibility, said self-proclaimed guru has to present themselves in a way that leads the lawyer to believe they are formerly successful lawyers who decided to leave their wildly successful practice so they could travel the $10 breakfast and $20 lunch circuit.

And that's the great thing about the internet. Anyone can say anything and cross their fingers and hope no one finds out otherwise.

Speaking of twitter, and twitter for lawyers: I have some questions for Adrian Dayton.

Adrian literally wrote the book on twitter for lawyers. I congratulate him on this publication and hope he finds much success. Here's a link to his book. I've received no money to promote it.

Adrian has put himself out there as the expert on twitter for lawyers. As anyone who puts themselves out there for the world, even the twitter world to listen to and buy from, he is fair game for some questions.

Like why he has a couple different bios that appear to say a couple different things.

Adrian claims he can teach you to be a rainmaker as a lawyer - "rainmakers" bring in business.

A summary but not complete background is that he knows how to use twitter, and he worked as a lawyer at a law firm for 8 months.

(NOTE: Adrian tells me today that he "assures me [he] is still a practicing lawyer." His Linkedin profile states that "My first position out of law school was with Jaeckle Fleishmann & Mugel where I worked in the corporate department. Soon after I left to start my own company specializing in social media strategy and online marketing for attorneys and other professionals." That company is 2 Comrades, Esq, which according to Linkedin, started in January 2009, not after he left his firm, but while he was there. He lists his current positions as [1] Buffalo Urban Outdoor Education Foundation(February 2009 — Present (10 months)) and [2] CEO, 2 Comrades LLC.(Marketing and Advertising industry) January 2009 — Present (11 months) (Providing training and consulting services to lawyers and other professionals on the power of social media. With a special focus on blogs and Twitter, Adrian Dayton provides companies with the tools they need to grow their business while eliminating traditional marketing costs).

Now, back to my questions. I don't know how many clients he brought in to his firm in 8 months, he doesn't say. He did say on today's podcast that he started on twitter because while at his firm for 8 months, 2 of those months he had no work.

UPDATE: While editing this post and before it was published, Adrian chimed in on a comment I made about this on twitter and told me I was "very close to libel."

Anyway, on JD Supra it says that Adrian, a 2008 law school graduate, is "an experienced corporate attorney who has worked on mergers in excess of $450 million dollars.

"He has spent almost a year working as a corporate attorney with Jaeckle Fleishmann and Mugel where his team closed a merger worth approximately $450 million dollars."

The questions are numerous. How can a member of the Bar, with a straight face describe themselves as a rainmaker and an "experienced corporate attorney" with 8 months experience, 2 of which there was no work? And in those first 8 months was he an integral part of one $450 million dollar merger, or was it several $450 million dollar mergers? Which bio is true? Exactly what role did he play and what relevance does it have to teaching lawyers to use twitter? Was he using twitter before the merger? Did twitter get him the merger client? Someone, anyone?

According to Adrian, he has been "quoted by the Wall Street Journal, the ABA Journal, Above the Law...." He also states that "Adrian Dayton is recognized as an expert specializing in Social Media for attorneys by The Wall Street Journal, Fast Company Magazine, Entrepreneur Magazine, the ABA Journal, and Above the Law."

I searched Adrian Dayton on the Above the Law blog (a very good blog, but not one I ever knew to knight experts) and couldn't find where they named Adrian an expert.

On FastCompany.com I found this article, but it only refers to Adrian as a "New York Attorney and Author."

How about the American Bar Association (ABA) Journal? My search for Adrian Dayton came up with no reference to him as an expert.

I think I'll stop searching these respected publications and blogs at this point and invite anyone, including Adrian, to find where each of them don't just regurgitate, but actually name Adrian as an expert. I'm happy to loudly apologize should I be proven wrong. Again, I'm just asking questions here.

Adrian Dayton is recognized as a leading expert in exploiting social media for business development within law firms.... Since creating his Twitter account: - He has gained over 30,000 followers - Is consistently ranked in the top 50 most popular Twitter accounts worldwide - Has ranked number 1 in the state of New York ahead of CNN, Fox News, and Anderson Cooper.

But I don't know who wrote that.

I often wonder if any of the lawyers on twitter, who flock to these "experts" take the time to learn their backgrounds. Actually, I don't wonder - they don't.

As a result of this, the other social media guru's on twitter will huddle together, console each other, and tell each other how mean I am. While they're at it, while they're busy trying to make a living creating an "image" for others on the internet, I hope they work on their own, real, persona.

In September, I ate dinner with close friend of mine, who also interned at RRA, and his older sister, who works at a more prestigious South Florida law firm. My friend and I inquired as to what his sister was hearing about Scott and RRA.

“I wouldn’t be surprised if, a few years from now, we find that he’s been running a massive Ponzi scheme,” I half-jokingly remarked.

Thursday, November 19, 2009

So you're a lawyer less than 5 years out, you have no "book of business," and there is no option for you other than to get another job at another firm.

You were a great student, have a bright future as a lawyer, and this on your resume:

"Associate, Rothstein, Rosenfelt & Adler, P.A. 2006-2009"

Law firms, not all law firms, are publicly stating their concern about hiring lawyers from this now dissolved firm.

You did nothing wrong, you never knew what was going on, and everyone knows that. Still, the perception. It's all about the perception.

Some advice:

[1] Be bullish.

Do not take it off your resume. As in all issues regarding your character as a lawyer - be completely honest. A reasonable lawyer or law firm will ask the appropriate questions and move on.

[2] Over-offer to discuss your previous job.

Make it clear that while you may now be in a position where perception is hurting you, your role there was as a serious and good lawyer doing important work that you will continue to do at your new firm.

[3] Put the interviewer in your shoes.

Tell the story. One day you were told it's all over. You were sitting there preparing for a deposition, reading case law, talking to a client, and 48 hours later, you were done. "Can you imagine what that was like?"

[4] Use it as a learning experience, and maybe a speaking experience.

This new firm now has a lawyer who will be ultra-sensitive to any issues of impropriety, and is going to benefit from having a lawyer who is more prone to asking questions and verifying everything. They've now got a very paranoid (in a good way) lawyer in the office. maybe they should put you in some compliance position along with your legal duties.

On the speaking experience, how many lawyers do you think would love to hear about what you went through as a young lawyer? I'm not talking about getting paid for speaking, I'm talking about getting out there and meeting people, letting them know you're not hiding from this experience.

[5] Get over it.

Just think, you were in the belly of the beast of a huge scandal, yet you had nothing to do with it. (I hope.) Don't hide from it, use it to your advantage for the rest of your career. You've experienced something that most lawyers will never experience.

Wednesday, November 18, 2009

Although I will fight for the rights of my clients who are charged with advertising violations, I am not a fan of lawyer advertising. I'm not talking about the listing in the directory or the ad in the charity dinner program or business journal. I'm talking about the cheesy inaccurate puffing that goes on in the yellow pages, on billboards, and on TV.

I have said, and strongly believe, that The Florida Bar has gone over the top in advertising regulation. I think they've gone so far into regulating every aspect of advertising that they don't know how to get out of it. The premise is clear: The public is stupid and must be protected. They cannot see through ads that proclaim the lawyer is the "best," and may find themselves disappointed if they hire one who talks about "past success." Thus, the Bar must protect the consumer from themselves. It amazes me that the public doesn't even realize that the Bar rules are aimed at their stupidity.

As reported on Public Citizen, as of yesterday, The Florida Bar has agreed to exempt online lawyer directories such as Avvo.com and Linkedin.com from its rules prohibiting client testimonials, statements of past results and comments on quality of services, settling a case brought by Public Citizen on behalf of a Boca Raton, Fla. attorney.

According to Public Citizen the settlement is an agreement by the Florida Bar to treat lawyer profiles on directory sites as information requested by the client, which is not subject to the same restrictions as unsolicited ads. The Bar will also review its lawyer advertising rules regarding Web sites maintained by lawyers and recommend changes to the Florida Supreme Court.

Public Citizen attorney Greg Beck, who represented Joel Rothman, states correctly that “this settlement is a victory for the free speech rights of attorneys and makes it far easier for consumers to make a decision on legal representation.”

This truly, is a victory. How anyone could think that a client, a real client, would put a lawyer in jeopardy by writing online that they were happy with the lawyer's services is beyond the pale. We complain that the profession has lost it's luster, that lawyers are no longer looked up to in society. Yet when a client of a lawyer wants to say something good about the lawyer, there's the Bar to run in and say, "no, can't do that."

I commend the Bar for settling this case in a manner that allows the consumer to speak, and exempts the lawyer from discipline for that speech (I can't even believe I'm writing that sentence. To think that the Bar would discipline a lawyer for the words of a client is shameful.)

I do hope the Bar takes a look at all the advertising rules, and takes a few more good steps back.

I had the opportunity to talk with a group of law students over the weekend and get their thoughts on what they'll be doing after graduation.

Here's my unscientific analysis of the average law school graduate based on this group of 9:

[1] Most have no idea what they want to do.

[2] Most will take any job.

[3] Most will move anywhere to satisfy [2]

[4] BigLaw never came up.

[5] Very few are doing anything practical in law school that is relevant to their future.

[6] The only strong feelings they have is in what geographical area they'd like to live.

The collapse of BigLaw is akin to a power outage where everyone's looking for a flashlight that isn't around. Beginning in the 80's with "L.A. Law," graduates did not need to know what "law" they wanted to practice, they just needed to know that good grades got them the downtown penthouse office, mahogany furniture, and cool conversations in the office kitchen.

Now that's all over and law school graduates need to become "lawyers."

I see a generation of graduates who have responded to the collapse of BigLaw with goal of "just getting a job."

I told them to go where lawyers go, to try and meet the lawyer(s) with whom they want to work. I told them to differentiate themselves, and I told them to work for free while looking for a paid job if they must.

I did not tell any of them not to go solo out of law school because thankfully, none of them want to do that.

Yesterday one of them e-mailed me to say thank you. He also sent me his resume, on PowerPoint.

Sunday, November 15, 2009

I saw something at the last session of the Florida Board of Bar Examiners Hearings that made me laugh, just a little.

Applicants, listen, I'll say this again: "Bringing a lawyer to your hearing" is a waste of time.

Hiring a lawyer to prepare you for your hearing, and attend, is a worthwhile expense.

So I'm standing there, with the other lawyers who "do this work," and aren't just lawyers there as a warm body with a Bar card because the idiot applicant thinks it matters to the Board, and I saw something.

One of the applicants had with them a lawyer. This lawyer was a former well-known politician. Why did this applicant bring this "lawyer?"

Because either he thought it would make a difference, or the former well-known politician thought it would make a difference.

It didn't, and it wouldn't.

Sorry to break the news, but it's the same news I break when a lawyer with a Bar complaint hires a former Bar President just because they're a former Bar President. (caveat: some former Bar Presidents represent both applicants and lawyers as part of their practice.) Hiring a former politician to "represent" you before the Board is like hiring the CEO of a hospital to do your open heart surgery.

You're better off representing yourself at the hearing than trying to use political "muscle" to sway the unswayable members of the Board.

Representation at a Bar Admission hearing is all in the preparation. It's going over the typical questions that are asked, and the pitfalls that applicants face when they don't understand the purpose of the hearing. Once the hearing starts, you can have the President of the United States sitting next to you and the Board could care less. They're there to assess you, not your "muscle."

I hope this applicant got into the Bar, and I hope if he didn't, he doesn't blame his "lawyer." He probably didn't do anything to affect the outcome, either way.

Thursday, November 12, 2009

If it hasn't happened yet, The Florida Bar will be sending a letter to Mr. Rothstein asking for his position on the various allegations that have blanketed the media over the last 2 weeks.

He won't have to respond right away. The Bar recognizes the 5th Amendment.

But eventually he'll have to respond, or be suspended for his failure to respond.

After the Bar completes their audit of the finances of the firm, they will file a Complaint, just like any other civil complaint, except this Complaint will be filed in the Supreme Court of Florida and seek disbarment.

Permanent Disbarment.

"Disbarment is the presumed sanction for lawyers found guilty of theft from a lawyer’s trust account or special trust funds received or disbursed by a lawyer as guardian, personal representative, receiver, or in a similar capacity such as trustee under a specific trust document."

The question will be whether Rothstein will attempt to invoke Disbarment on Consent:

"A respondent may surrender membership in The Florida Bar in lieu of defending against allegations of disciplinary violations by agreeing to disbarment on consent. Disbarment on consent shall have the same effect as and shall be governed by the same rules as provided for disbarment elsewhere in these Rules Regulating The Florida Bar."

The difference: Although there is no chance he will ever be re-admitted, he will have the option to reapply after 5 years. Permanent Disbarment does not allow for readmission.

Be interesting to see what happens here.

For now, he's a Member in Good Standing and able to practice law just like any other Florida Lawyer.

Tuesday, November 10, 2009

I keep getting these resumes and cover letters and wonder why you young lawyers think I give a crap about what you think about yourself.

You "believe you can become an asset" to my firm? You believe your references and credentials are a testament to your ability to "thrive?" You have "attention to detail" and an "innovative work ethic?"

What moron taught you how to write a cover letter? And why are you writing one that is exactly the same as all your unemployed friends?

I previously wrote about how your cover letter gets in my garbage, and now I want to add some things based on the state of the economy and my state of having become thoroughly disgusted with "typical" cover letters.

So here it is:

Enough with the typical bullshit. I'm not reading it anymore. You want to get to me -send me an email with something interesting to say, and your resume attached. I don't give a crap about the bullshit work you did while an intern or the one case you think you tried.

If you can't resist the cover letter in the mail waste of time, send your resume with a handwritten note. Use my first name. Be real. You're looking to make a connection, not bore someone to death with your opinions about yourself. No one cares.

Sunday, November 8, 2009

As lawyers we are all required to follow the ethics rules of our state bar associations. Most are the same - watch the conflicts, communicate with your client, don't get arrested, operate with a good faith basis in litigation, the trust account money isn't yours, advertise within the confines of certain language, and rat on your colleagues if you see them doing something wrong (that always gets a good laugh).

I wonder though if lawyers operate under their own personal code of ethics. Today's young lawyer, desiring more "work/life balance" and finding BigLaw less interested in how great they think they are and their entitlement to a funnel of money to pay off student loans, is on the internet doing Google searches like "how to make money as a lawyer," and "how to market yourself as a lawyer."

Law, is a business. That law is a "profession" is nothing more than a nice topic for ethics seminars and for older lawyers to whine about. The young lawyer is more focused on web marketing and flexible payment plans.

I have a personal code of ethics. It's not written anywhere, and it's a work in progress, but I won't violate it. When I say it's a work in progress, I mean that it has developed with certain experiences and the natural progression of "growing up" as a lawyer.

Here it is:

[1] My client does not dictate how I treat opposing counsel.

Too many lawyers tell me when I ask for something "I have to ask my client/the victim." These requests are generally related to time extensions and issues of rescheduling.

I'm not interested in how "aggressive" your client wants you to be. You, as opposing counsel, and I, have lives. We have families, illnesses, vacations, and just other things going on.

I won't outsource my courtesy to my client's wishes, even if you do. And I won't "be mean" to the prosecutor to put on a show for my client.

[2] I will never take your case just because you "think it's a great case for me."

Let's be honest. Some lawyers decide to take a case if one requirement is met - the client writes a check.

Yes, in the beginning, I took cases I didn't want to take. I represented clients I didn't want to represent. As time went on, I learned that sometimes the best case is the one you don't take. To some, this is not an option. That's too bad. And it's something to reconsider. Being a lawyer is not a commitment to misery in search of the all-mighty dollar.

[3] I will deal with difficult clients, but not those that are difficult in every aspect of the representation.

Client's don't own me. You hired me to represent you. You did not hire me to refrain from vacations, events for my kids, call you back 3 minutes after you call, or be available to every family member and friend that wants to "know what's up with the case." I am also not your bank. You may be a client who needs some extra attention. I'm happy to give that to you. My job is to be available to you when it's necessary for me to be available. My job is not to convince you every minute of every day that your fee, your case, is the only basis of my existence.

[4] I'm not in the referral fee business.

PI lawyers are a unique bunch. They insist on paying referral fees. All of them. OK. It's like arguing over a dinner check. What's the point? You want to pay, fine. Thanks.

I don't pay referral fees. I don't take them either (Save for the PI lawyers that insist). I'm not going to charge $5,000 to a client to handle their case, and pay you $1250 because you made a phone call. Neither will I do that to you. You don't want to refer me a case because I won't pay you, fine. I don't care, really. Go refer your friend, family member, colleague to someone who will line your pocket. I won't tell them your real interest.

[5] I will communicate with lawyers informally (via phone, hallway conversations) until I am given a reason not to do so. Not the reverse.

[6] I will not judge you as a lawyer based on what others say, until you prove to me you are the jerk, liar, scumbag everyone says you are.

This I learned as time went on. I've dealt with prosecutors, civil lawyers, and judges that "everyone" hates. I've had respectful, professional conversations and litigation with some of them. Even if you are "that" prosecutor that everyone talks about, I'm giving you the benefit of the doubt on our first encounter.

[7] I'm not handling your legal matter if it's not something I do.

I don't care if it's a phone call. The answer is no.

[8] I will not lie to get a case.

If I've never handled a case like yours, I'll tell you. If I know you are eligible for a dismissal just by showing up by yourself to the arraignment, I'll tell you. If the other lawyer you are talking to is a good lawyer, I will tell you. If you tell me you think this is a simple case, I will tell you I don't handle simple cases and send you on your way.

[9] I will not reschedule a missed appointment as a new client unless there's a good reason.

If this isn't that important to you, it's not that important to me.

[10] I will not be the second lawyer in your case unless your first lawyer has done you an obvious disservice.

If you're "not happy" with your first lawyer, most likely you will not be happy with your second, or third lawyer. Yes, there are exceptions, but they are rare.

[11] Unless I, not you, determine the case will be handled pro-bono, I will not make a phone call, file a pleading, or do anything for you on the "promise" that you will pay me.

It is never the client's fault that the lawyer was not paid. It is always the fault of the lawyer.

[12] No one will ever give you legal advice in your case besides me, or a lawyer designated by me. You hired me, not my assistant. So stop asking her.

[13] On that note, I will not allow you to be disrespectful to my staff.

I see this occasionally. You yell at my assistant because you haven't heard from me in an hour. I get on the phone, and you deny you were rude. I never buy it, and make sure you understand it's not to happen again.

[14] I will never support a judge for re-election that I believe does not belong on the bench.

Lawyers who support the "incumbent" are part of the problem. We are built to effect change, not fall in line like sheep.

[15] I will never outsource my marketing, and if you do, I will never refer you anything.

I know, those who outsource their marketing, don't care from where they get their cases.

So, what do you have? What's part of your personal code of ethics? If you have one.

Friday, November 6, 2009

Over the past few days as the Scott Rothstein meteor hit the earth in South Florida and continued to smolder, the conversation between any and all lawyers in any and all venues; elevators, courthouses, cocktail parties, has been about little else.

Last night a lawyer asked "is this the biggest legal scandal to hit South Florida?

I said yes.

We had a big scandal in the 80's of judges taking bribes, and we've had our share of lawyers disbarred and sent to prison for various crimes.

But this is different.

This was a lawyer that caught the attention of every other lawyer in South Florida. His round the clock commercials with the biggest sports stars, his many cars, watches, six-figure political contributions, threats to news reporters to back off, his entire existence was highlighted in the media for all to see, and wonder.

But this is about the fallout, and here's my thoughts:

[1] By next summer Scott Rothstein will be sentenced to a lengthy federal prison sentence.

He will agree to be charged without an indictment and plea guilty. Few of the "friends" he made with his money will speak on his behalf. The news will be who is "not" there at sentencing.

[2] Does anyone like Scott?

I haven't heard or read a single thing in his favor from a personal friend or professional colleague. NOthing. Usually in these circumstances someone comes forward and says "wow, that's too bad, he was a really nice guy."

We as lawyers should think about this. While being a "nice guy" isn't important to many lawyers, it's interesting to watch Rothstein's collapse and that no one has come to his defense as a person. You want that?

[3] All lawyers from the firm will be tainted in some fashion.

This notion that many of the lawyers are going to "stick together" and form another firm is silly. After the ValueJet crash the only reason that airline survived is because it changed its name to Air Tran. Did you know that? Exactly.

The firm of Rosenfelt, Adler is not a good idea.

The associates; what will they put on their resume? That they worked for Rothstein? Will other firms want that on the precious bios the firm posts of individual lawyers on the web?

If I was a lawyer at Rothstein's firm, I'd run, fast, and open my own shop. Maybe with a lawyer or two from the firm. Maybe.

[4] All lawyers from the firm that ever want to be appointed or elected, won't.

Rothstein was so tied in with Florida's political establishment that no one will want the fallout from appointing a lawyer from the firm. Anyone who runs, for anything, will have commercials run against them about the fact they worked for Rothstein.

This collapse, of this lawyer, will resonate for a long time. Not to even mention the dozens of lawsuits that will dog Rothstein and the firm and their lawyers for years.

Wednesday, November 4, 2009

(a) Petition for Emergency Suspension. On petition of The Florida Bar, authorized by its president, president-elect, or executive director, supported by 1 or more affidavits demonstrating facts personally known to the affiants that, if unrebutted, would establish clearly and convincingly that an attorney appears to be causing great public harm, the Supreme Court of Florida may issue an order suspending said attorney on an emergency basis.

So will they (the Bar) and can they argue that a lawyer who is rumored to have taken hundreds of millions of dollars from trust accounts, that were/were not/could be/maybe were part of the law firm, is, not was, causing great public harm?

Tuesday, November 3, 2009

I was tracking a package yesterday. Wine. From Napa. As of 8:01 a.m. it was on the truck. By 5 p.m. it hadn't arrived.

I called UPS. "Can't tell you anything for an hour."

At 6 p.m. I was told this package, from Napa, CALIFORNIA, was returned to the warehouse and was being "held for customs."

Customs.

"Why?"

"It didn't have the proper markings on the box."

I was told they would hold the package at the warehouse and I could pick it up.

"Be there by 7 p.m., that's when we close."

At 6:50 p.m. I arrive to a guy who is extremely suspicious of me because my address on my driver's license is my home address and the package was being shipped to my office. He asked for a business card. I pulled one out of my wallet, that was in the pocket of my pants of the suit I was wearing.

"This package is not here. Come back at 8 p.m."

Then, I find out the truth. The package is damaged.

I tell the guy I'll take the undamaged bottles and settle up with the winery.

This confuses him.

After 40 minutes of back and forth and several more stories about where this package is and what really happened, I tell him to just have it re-delivered to my office.

"I can't do that, you have to speak to a supervisor."

I spoke to a supervisor on the phone who seemed to understand the situation and told me she'd call back in 5 minutes.

After 10 minutes, I left. As I got in my car, my phone rang, it was the supervisor asking me to please wait and she would call me back in a "very short time." I told her I had enough and she understood. She also admitted that drivers are told to scan the package as being held for customs when there is damage: "I know it's wrong, but that's what they're told to do.

After another 10 minutes, now having spent an hour there, I left. She called, verified the package was damaged, and seemed shocked that my response was "send it all back to California." (I had already spoken with my friend at the winery who was preparing a new shipment FED EX.)

The take away?

[1] UPS lied to me.

This is the "never admit fault" language on the back of your auto-insurance card. UPS assumes the issue is fault, not what happened. They pay no mind to the fact that the wine is insured, I really don't care that it was damaged, I just want to know the truth. Instead, they hide it as long as they can.

[2] UPS did nothing to make the situation easier on me.

This is 2009, computers are everywhere. When I hung up the phone at my office after saying I would pick up the package, I saw something to the effect of "customer will pick up" on the UPS website instantaneously.

When I arrived at the warehouse I was cross-examined ("who told you that") in a way that made clear they did not believe me.

When I said "just send it to my office," they should have said "absolutely sir, have a good night, and we're sorry for all of this."

In the end, their goal was to be as far away from the situation as possible.

[3] UPS doesn't care.

This blog post, my memo to my office to never send anything UPS, will have no effect on UPS. NO one from UPS will read it, and I will receive no response. I know that, and they know that. It's one thing to know that losing a customer or client will have no effect on your bottom line, it's another thing to act like every customer or client matters.

[4] UPS was more interested in protecting the issue of fault, then just being honest.

"I screwed up." "We screwed up."

When did we stop just being honest? Probably when people became afraid of being sued at every corner.

But this was an insured package. What was the cover up aimed at accomplishing?

Last week I realized a document in a case was not filed and my client received a letter to that effect. I knew what happened. It was my office's fault, and I told the client. I told him the truth. He's fine. I'm fine. We're fine. He knows I'll be honest with him. I could have said "I don't know what happened," or been evasive and just told him "I'll take care of it." Instead, I told him exactly what happened and took care of the situation for him.

Sunday, November 1, 2009

The first week in November is the time to start thinking about closing out the lawyer's year. Time to start thinking about who to thank, how to thank them, and next year.

I've been in private practice 12 years. That is the sole basis of the following advice:

[1] Do not buy embossed holiday cards.

I throw them all out. They are a complete waste of money. They are impersonal, no matter how funny the joke is on front. You want to wish someone a happy holiday, call them or send them a handwritten note.

[2] Send breakfast or pizza to your vendors.

Trust me, no one does this.

[3] Thank those that sent you business, but more importantly, those that tried to send you business.

No one ever thinks to thank those that tried to send them business.

[4] Consider Thanksgiving.

Not to brag, but around Christmas, I can't keep track of the basket arrivals. Around Thanksgiving, I get one or two things.

[5] Buy some drinks.

Yes, you can send that bottle of wine, I do. But consider dropping the credit card at the local bar and inviting a dozen or two people who have helped you this year for a drink or two. What's it going to cost you? A couple hundred dollars? half the people won't show up, but will appreciate the invitation.

[6] Think of 5 things that didn't work, and 5 things that you need to try.

If you keep doing what you're....well, nevermind. if you don't understand this, I can't help you.

[7] Make some phone calls.

Reconnect, see how everyone's doing. It's been a rough year for a lot of people. You never know what will develop in a conversation.

Friday, October 30, 2009

Lawyer advertising rules and opinions continue to break the bounds of utterly ridiculous.

The premise of ad rules is simple: potential clients are dumber than dirt and need to be protected from themselves.

This is why lawyers can't say they are the "best," or "better than any lawyer in town." Because potential clients are stupid and will believe this, and immediately dump a pile of cash in a paper bag and run to hire the lawyer. Then, their case will be mishandled. Yeah.

Bar associations should be ashamed of themselves for proceeding on this notion.

Now South Carolina jumps into the fray. The ABA Journal has the story here.

A new opinion out of that state advises lawyers that if they “claim” a website listing by clicking on an “update this listing” link "or otherwise adopting the posted information must make sure the material conforms with ethics rules—even information that is posted by others, including clients."

Translated: client comments in favor of the lawyer are not welcome. The SC Bar will say that negative client comments are not welcome either, as the opinion talks about "false, misleading, deceptive or unfair" statements, but as I say much too often, let's be honest here.

In fact, the SC Bar is not subtle in their purpose:

Client testimonials, barred by state ethics rules, should not be solicited or allowed. More general recommendations or statements of approval—client endorsements—may be allowed if they aren’t misleading and don’t create unjustified expectations.This is the best:

“If any part of the listing cannot be conformed to the rules (e.g., if an improper comment cannot be removed), the lawyer should remove his or her entire listing and discontinue participation in the service,” the opinion counsels.

What is going on here? Your clients can't say anything nice and if they do, you must delete the site.

Shameful.

Just shameful.

Cue the law professors:

Mercer University law professor David Hricik:

“Frankly, this one baffles me,” Hricik wrote.

No David, no reason to be baffled. This is clear. An unconstitutional ban on speech. We have gone too far and the SC Supreme Court will say so at some point.

Avvo general counsel Josh King, who duly notes the opinion is target at his company's site, told the ABA Journal that constitutional issues are all over this.

Yep.

Except the SC Bar doesn't care:

"The ethics opinion notes it is not addressing any constitutional questions"

Yeah, forget that.

Ethics opinions are just that, opinions. They may not be used (at least in Florida), by a complainant in a Bar Grievance.

Wednesday, October 28, 2009

Yesterday online lawyer directory AVVO kicked off their national tour in Miami. I, having a ton to say in criticism of online lawyer marketing, was invited as a featured panelist.

This in and of itself is pretty fascinating because if you don't know, the self-proclaimed and lacking in credibility internet/social media/tech expert lawyer "advisors" have a rule that they do not address dissent, nor answer questions about their backgrounds. I was on a webcast last month talking about social media and lawyers, and the snake-oil salesmen and "social media experts" were all a twitter about how there was "disagreement" on the panel.

One of the first comments from AVVO about me yesterday was that their first interaction with me was "not positive." But there they are, saying "come speak on a panel with us, let's have a real discussion."

Initially, I questioned the concept of AVVO and the issue of being about to enter information on a profile that increases your rating. I sent AVVO a list of questions, and they answered every one of them - fully and honestly.

Too bad most of the social media people avoid real discussion that hurts their attempts to prove the greatness of themselves that is a complete fallicy.

Yes, they are there to tell you about AVVO, and yes they do have products and services that cost money - it is a business you know. But the 3 1/2 hours are filled with tips on general online marketing and is perfect for someone who has no idea about blogging, facebook, twitter, or other sites that lawyers use to market.

The advice is right from CEO Mark Britton and others who have a good sense about how lawyers are perceived, and what they can do to have a better online presence.

And it's free.

I tweeted the conference yesterday, and my comments can be found at http://search.twitter.com. At that site, type in #avvotour.

Here's some of what I said:

[1] If you have an online presence, you must have an offline presence. You must be a real lawyer with a real practice with real clients, and not just be creating an image on the net.

[2] You can whine and moan that twitter is a waste of time. 55 million people are "wasting their time" on twitter. There you will find former clients, potential clients, current clients, other lawyers, people looking for lawyers, and people who don't need you now, but may, or may know someone who will.

[4] When blogging or twittering, know that people are more interested in non-technical legal talk.

[5] Social media is not about you, it's about everyone else. As Mark Britton said, it's a party, if you're there "pumping yourself" people won't listen and will grow tired of you. Here's a twitter account I grew tired of quickly: http://twitter.com/coloradodui

[6] Blogging is the best way to let people know who you are, and what you're thinking.

[7] If you're joining social media solely for the purpose of making money in your practice, it will never work.

Thanks to the guys at AVVO for asking me to join them in a real conversation about the future of online marketing for lawyers.

Tuesday, October 27, 2009

He says : "I am a solo and if large law firms crash, I am going to end up covered in dust."

He acknowledges "biglaw has a reputation for some qualities that give the law a bad name — high fees, leveraging associates to increase partner salaries, huge billable hour requirements, and lousy work / life balance, to name a few of the popular gripes."

"But biglaw suits some lawyers," he rightly states.

He notes that small firms/solos have their good and bad:

The smalls, in contrast, love to tout their personalized attention to clients, reasonable fees, individual autonomy, and great work / life balance. But not all smalls are good at bringing together the myriad of skills it takes to run a law practice. Most smalls practice some form of “retail” law: criminal, family, personal injury, workers comp, small business, real estate. Often the clients are high maintenance and the income stream equally unstable.

Eric is right that "individual clients; these folks need smalls," and that:

"A large company with millions of dollars on the line looks for a brand name, the vetting of associates and partners, and the ability to quickly put together a team of lawyers to tackle major litigation or a huge transaction."

Then he tries to put this all together in a tied with a small bow on why "we need each other."

He says Biglaw has conflicts and needs to refer out clients and cases. He also says that:

"Biglaw’s corporate clients are managed by people — who get divorced, have too much to drink before driving home, get into accidents, etc. Many of those matters need to be referred out. Smart lawyers refer clients to good lawyers they know who are reasonably priced and will treat the client well — like smalls."

He also says we need each other because:

"Biglaw attorneys are a great source of referrals for smalls. Also, when a case comes in that is to big for a small to handle, the small firm needs to bring in some muscle. Obscure questions may arise in a client’s case that need special expertise that can be found only at a large firm. Relationships with biglaw are a two-way street."

I've written about Biglaw here countless times. I never worked in Biglaw. They weren't hiring law students that wanted to be criminal defense lawyers (still aren't) because they tend to have that one "white collar" lawyer who mainly has associates review documents (bashing). Biglaw doesn't practice "street level" criminal defense, as Eric correctly notes," and they're not interested in law students who want to go to court (bashing). My 3 years in the public defender's office was worth more than 10 in Biglaw.

Biglaw is not all that old. The first big firms didn't come around until the mid-twentieth century. Now they're all in debt, trying to survive. (bashing)

I agree with Eric that law exists on two levels - there are those that need Biglaw and those that need small law. But I think Eric misses the reason Biglaw gets bashed.

Biglaw, as an institution, looks down on small law. (bashing) They tell their new associates that "this" is the way you practice law. They call us "some solo practitioner," and for the most part do everything they can to convince a client to stay with the firm even for the smallest matter. Why? Because they are scared that if one of their clients goes to a small firm or solo, they may understand that they don't need 4 associates on their case. (bashing)

When I write about Biglaw, some anonymous commenter (same idiot) always says it's because I have Biglaw envy. Anyone who knows me, my practice, my 3 rejections of merging with Biglaw, and my referral sources (Biglaw firms) knows that isn't the case.

The truth is that I think Biglaw as an institution does a disservice to the young lawyer. Disagree? How many laid off Biglaws are out there that after a few years in the firm, have no idea how to practice law? This is how Biglaw rolls. Don't teach the lawyer too much about start to finish type practice so they feel they can't leave and go out on their own, or go anywhere else.

So I agree with Eric, he makes some great points.

But I don't feel bad for what's happening now in Biglaw. Clients are becoming more frugal, smarter, and those firms have to come down to earth. No more french maids ironing napkins (true story).

So no Eric, you won't collapse along with Biglaw. There will always be a client who needs a good lawyer to help them.